High Court
Case Details
Crl.A. 21/2012 BEFORE HON’BLE MR JUSTICE P.K.MUSAHARY
Legal Reasoning
Heard Mr. L.K.Bora, learned counsel for the appellant. Also heard Ms.B.Saikia, l earned Addl.P.P., Assam, for the State Respondent. 2. This appeal is directed against the judgment and order dated 17.12.2011 passed by the learned Addl. Sessions Judge(FTC),No.1,Kamrup,Guwahati in Sessions Case No. 394(K) of 2010 convicting the accused appellant u/s 376(2)(f)/511 IPC and sentencing him to undergo Rigorous Imprisonment for five years and pay a fi ne of Rs.5,000/- in default further simple imprisonment for six month. 3. The prosecution case, in brief, is that on 28.09.2010 at about 9/10 AM t he informant’s minor daughter aged about 7 years was raped by the appellant. An FIR was lodged by the informant with Palashbari Police Station which was regist ered as Palashbari P.S.Case No. 221/2010 u/s 376(2)(f) IPC against the appell ant and charge sheet was submitted against him after completion of the investig ation. On committal, the learned Court of Sessions registered the aforesaid cas e and made over to the learned Addl.Sessions Judge, FTC,No.1, Kamrup, Guwahati f or disposal . The learned Trial Court framed charge u/s 376(2)(f). There was no charge framed u/s 511 IPC against the appellant The appellant pleaded not guilty and demanded trial. In the trial the prosecution examined as many as 8 witnesse s including the victim girl and the medical officer. The appellant also examined two witnesses in his defence. 4. The informant, Sri Biren Kalita is the father of the victim girl. He was examined as PW 1. He is not an eyewitness. He was not at home at the time of oc currence and he came to know about the incident after returning home from his wo rk place and filed the Ejahar. He proved the Ejahar and his signature found on i t. 5. PW 3 is the mother of the victim girl. She deposed that the occurrence t ook place at about 10 AM and he came to know about the incident when she enquire d her daughter who complained pain in her abdomen and disclosed that the appella nt took her to his living room and made her lay down on the bed, removed her clo th, mounted and committed rape on her. 6. The prosecution examined PW 4, Smt Baroda Kalita, an independent witness and neighbour of PW 1 and PW 3. She had no direct knowledge about the incident but she came to know about it from PW 1 and PW 3. 7. PW 6 is the medical officer who examined the victim girl on being produc ed before him by police. He found the genital organs of the victim girl healthy and hymen intact. In his opinion there was no evidence of recent sexual intercou rse on her person at the time of examination. There was no evidence of injury ma rk on her private parts. He proved the medical examination report and his signat ure thereon. 8. Besides, the prosecution examined one Judicial Magistrate, Ist Class, as PW 7 who testified that he recorded the statement of the victim girl u/s 164 Cr P.C. He proved the said statement which was marked as Ext.4. 9. The victim girl was examined as PW 2. Before recording her depos ition, the learned trial Court tested her intelligence and found her capable of understanding and answering the questions and capable to narrate the incident. A s per her evidence, the appellant took her in his room and asked her to lie down on the bed and then removed her clothes and also his own clothes. Then he did t he misdeed due to which she got pain on her private part and also bleeding there from. 10. The defence tried to impeach the evidence of the victim girl by putting question that she was tutored by her parents and sisters to make false d eposition before the Court. She has, no doubt, admitted that she was tutored bef ore coming to Court for deposition but the manner in which she deposed before th e Court does not appear that she deposed entirely what she was tutored. It has a lso been sought by the learned counsel for the appellant to establish that as th e hymen of the girl was found intact and no injury or sign of recent sexual inte rcourse was found in the medical examination, it is not a case of rape and the a ppellant can not be convicted u/s 376(2)(f) IPC. 11. I have considered the aforesaid submission of the learned counse l for the appellant and found force in it. A minor girl of the age of about 7 ye ars would have received some injuries, at least on her private part, if there wa s a forcible sexual intercourse or rape on her. As per the medical evidence ther e is no proof of penetration of the male genital organ. However, the victim girl complained pain and bleeding from her private part. Such evidence of the victim girl cannot be discarded lightly and disbelieved by the Court, merely because s he was allegedly found to be tutored inasmuch as one has to consider the mental trauma she received after the sexual assault on her. She was shocked and such sh ock continued for quite a long time and may be, till she made her deposition bef ore the Court. A tender girl of 7 years is not expected to tell a lie before the Court unless she really suffered from sexual assault. I am not inclined to disb elieve the evidence of the victim girl 12. Learned counsel for the appellant has drawn the attention of thi s Court to the evidence of DW 1 and DW 2. DW 1 is a mason under whom the appella nt used to work as a helper. His evidence is that the appellant was working with him on the day of occurrence. The evidence of DW 1 is not supported by any witn ess. Moreover, his evidence is vague inasmuch as, he only stated that the appell ant was working with him on the day of occurrence. Such evidence, unless corrobo rated by the evidence of other witnesses, cannot be accepted to dislodge the evi dence of a victim girl. 13. DW 2 is the sister-in-law of the appellant. She is undoubtedly a related and interested witness . Her evidence is not supported or corroborated by any other witness. In that view of the matter, the evidence of DW 2 is not ac ceptable to dislodge the evidence of the victim girl. 14. In view of the above discussion and appreciation of the evidence on record, I come to the conclusion that the appellant attempted to commit rape on the victim girl and during the course of such attempt, the victim girl recei ved some injury which is not visible but she got pain on her abdomen and bleed ing from her private part. Such pain or bleeding would not last till she was med ically examined, after four days of the occurrence. The charge u/s 376 (2)(f) I PC is not established and as such, the appellant stands acquitted of the charge under the aforesaid section of law. However, the attempt to commit rape on the v ictim girl by the appellant, has been established and he is liable to be convict ed u/s 511 IPC and accordingly, he stands convicted u/s 511 IPC and sentenced to undergo rigorous imprisonment for 2 ‰ years i.e. half of the period of original sentence imposed by the learned trial Court. Needless to say that the period of sentence the appellant has served shall be set of.
Decision
15. this appeal stands partly allowed and disposed off. With the aforesaid modification in the conviction and sentence,